ATS 'failed to attempt to accommodate': Arbitrator
After minor damage happened to an aircraft that caused 45 minutes of delay at Toronto’s Pearson airport, a ramp agent was tested for drugs in his system.
Dinesh Sehgal was employed by Airport Terminal Services (ATS) for nine years when on July 7, 2016, Sehgal and another ramp agent attempted to attach a tow bar to an incoming flight when it “rolled” away from him and caused damage to a United Airlines airplane.
After the incident, the agents were advised by Manni Baines, duty manager, that they would be tested for the presence of drugs or alcohol as per ATS policy.
After the ramp agents held an investigation meeting with Baines and other management personnel, it was determined Sehgal and his coworker did not follow the standard operating procedure during the incident and both were given two-day suspensions.
Sehgal also provided a urine sample.
On July 13, ATS was told that Sehgal’s urine tested positive for marijuana metabolites.
Sehgal testified that he was on a daily regimen of five grams of medical marijuana per day for pain management of a back problem caused by excessive twisting and turning during his daily work routine.
Sehgal also suffered from a sports-related knee injury and he had been prescribed marijuana about three years previously but he admitted he didn’t know the strength of his current strain because he had been through three different suppliers of the drug.
When the employer discovered Sehgal was using medical marijuana, it asked him to: enter a substance-abuse program, agree to access the employee assistance program and refrain from using marijuana or he would be terminated. Sehgal refused to sign off on these conditions.
On July 28, Sehgal was terminated. “This will serve as formal notice that your employment will terminate with cause effective July 28, 2016, due to your refusal to agree to the conditions outlined in your final-warning letter, which was issued to you on July 20, following your positive test results from July 7,” according to the letter.
The union, Unifor, Local 2002, grieved the decision and argued the conditions to test for drugs after an incident were too broad and by not accommodating Sehgal, ATS violated his human rights.
The employer argued that because Sehgal was employed in a safety-sensitive position, the decision to terminate — despite no previous discipline on his record — was justified.
Arbitrator Daniel Randazzo upheld the grievance and ordered ATS to reinstate Sehgal immediately. “ATS failed in its duty to attempt to accommodate (Sehgal), terminated (Sehgal) without just cause and in doing so, violated both the CHRA (Canadian Human Rights Act) as well as its obligations under the collective agreement.”
The employer did not follow the proper steps once it was found Sehgal was taking medical marijuana for pain management, said Randazzo. “Once informed that the positive test was the result of legally authorized medication, in this case medicinal marijuana, it was incumbent upon ATS to attempt to accommodate (Sehgal).”
And despite what the company argued, Sehgal did not break any laws. “With regards to (Sehgal’s) circumstances, as earlier found, (Sehgal) was not using illegal drugs at or in connection with his workplace and did not report to work or work while impaired by drugs or alcohol. (Sehgal) was using medically authorized marijuana,” said Randazzo.
ATS’s argument that Sehgal was impaired does not hold water, according to the arbitrator. “The expert evidence and literature are inconclusive when it comes to determining the window of impairment, which varies depending on the strain, dosage and the user and, as such, extreme caution should be taken when an employee is taking medicinal marijuana in a safety-sensitive workplace.”
Reference: Airport Terminal Services and Unifor, Local 2002. Daniel Randazzo — arbitrator. Hal Rolph for the employer. Dijana Simonovic for the employee. March 5, 2018. 2018 CarswellNat 991
